Wolfson v Cox, (03-800) 06/01/2004

Appeal by plaintiffs from order entered 12 February 2003 by Judge Jay D. Hockenbury in New Hanover County Superior Court. Heard in the Court of Appeals 3 May 2004.

Peter Grear for plaintiff-appellants.

Ennis, Newton & Baynard, P.A., by Stephen C. Baynard, for defendant-appellee.

ELMORE, Judge.

    On 4 December 2001, plaintiffs Stephen and Susan Wolfson filed this action to recover damages for injuries incurred in a 12 December 1998 two-car collision allegedly due to the negligence of defendant Charmaine D. Cox. Civil summonses were issued for defendant Cox and her automobile insurance carrier, defendant North Carolina Farm Bureau Insurance Company, Inc. Plaintiffs attempted service at 412 Maids Avenue, Wilmington, North Carolina, the address shown for defendant Cox in the accident report. Thesummons for defendant Cox was returned the same day unserved by the New Hanover County Sheriff. Plaintiffs then served defendant Cox by publication in the Wilmington Journal. Plaintiffs filed an affidavit of service by publication on 25 July 2002.
    Defendant Farm Bureau answered on 15 May 2002 and preserved its defenses for lack of jurisdiction over the person, insufficiency of process, insufficiency of service of process and failure to state a claim upon which relief can be granted pursuant to North Carolina Rules of Civil Procedure, Rule 12(b). Defendant Farm Bureau's Rule 12(b) motions were heard on 4 December 2002.
    To support its motions, defendant Farm Bureau offered affidavits from defendant Cox, the New Hanover County Tax Administrator and a Farm Bureau field adjuster, as well as certified public records of the North Carolina Division of Motor Vehicles. In her affidavit, defendant Cox stated that she currently resided on Estate Road in Wilmington, North Carolina and that she had lived there for approximately three years. The New Hanover County personal property tax records and the North Carolina Division of Motor Vehicles reflected that defendant Cox lived on Estate Road in Wilmington, North Carolina. In opposition to the Rule 12(b) motions, plaintiffs' attorney filed an affidavit stating that he made a diligent effort to find defendant Cox's whereabouts in that he “tried to call the defendant, tried to find her address in the phone directory, personally went to the address listed on the accident report and personally searched the [public] records [at] the New Hanover County Courthouse.”     After considering the evidence, the trial court found that defendant Cox's address at the time of the filing of the complaint was available through the North Carolina Division of Motor Vehicles and the New Hanover County personal property tax office. The trial court concluded plaintiffs failed to exercise due diligence in attempting to serve defendant Cox before resorting to service by publication and dismissed the action. Plaintiffs appeal.
    Plaintiffs contend the trial court erred by finding that they had not exercised due diligence in ascertaining an address for defendant Cox, thereby deeming plaintiffs' use of service of process by publication under Rule 4(j1) inappropriate. We disagree.
    Service by publication is a permitted method of service of process where a party “cannot with due diligence be served by personal delivery, registered or certified mail, or . . . pursuant to 26 U.S.C. § 7502(f)(2).” N.C. Gen. Stat. § 1A-1, Rule 4(j1) (2003). Due diligence requires a plaintiff to “use all resources reasonably available” in trying to find defendants. Fountain v. Patrick, 44 N.C. App. 584, 587, 261 S.E.2d 514, 516 (1980). If due diligence is not used in ascertaining defendant's address, service by publication is void. Id. In determining what constitutes due diligence for the purpose of permitting service by publication, this Court has declined to formulate a “restrictive mandatory checklist.” Rather, a case by case method of analysis has been adopted. Emanuel v. Fellows, 47 N.C. App. 340, 347, 267 S.E.2d 368, 372, disc. review denied, 301 N.C. 87 (1980).    The checking of public records has been considered significant in determining whether due diligence has been exerted. Winter v. Williams, 108 N.C. App. 739, 742, 425 S.E.2d 458, 460, disc. review denied, 333 N.C. 578, 429 S.E.2d 578 (1993). In Winter, this Court held that the plaintiff exercised due diligence when, among other things, the plaintiff checked the public records, including records of the Division of Motor Vehicles, and could not obtain a current address of the defendant. See Williams, 108 N.C. App. at 744, 425 S.E.2d at 461. On the other hand, this Court held that the plaintiff did not exercise due diligence when the defendant's address was listed on his North Carolina driver's license, property tax records, voter registration records, and college records. In re Clark, 76 N.C. App. 83, 87, 332 S.E.2d 196, 199, appeal dismissed, 314 N.C. 665, 335 S.E.2d 322 (1985),
    Here, plaintiffs relied on the address found in the 1998 accident report to serve defendant Cox. Plaintiffs did not search the public records of the North Carolina Division of Motor Vehicles nor the New Hanover County property tax records. Furthermore, there is no evidence that plaintiffs attempted service by certified mail or contacted the defendant Cox's insurance carrier to locate defendant Cox's whereabouts. Under these circumstances, we hold the trial court properly concluded that plaintiff did not exercise due diligence in attempting to serve defendant Cox prior to service by publication.
    Affirmed.
    Judges TIMMONS-GOODSON and CALABRIA concur.    Report per Rule 30(e).

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